Com. v. Ellis, M. ( 2017 )

J-S25009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MANNY ELLIS,
Appellant No. 1108 EDA 2016
Appeal from the PCRA Order Entered March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006414-2009
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 13, 2017
Appellant, Manny Ellis, appeals from the post-conviction court’s March
4, 2016 order denying his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises six claims for our
review, all involving ineffective assistance of counsel. After careful review,
we affirm.
The PCRA court summarized the factual history of Appellant’s case as
follows:
On December 16, 2008, [Appellant] and co-defendant
Ramieq Jackson [(hereinafter “Jackson”)] approached Isaiah
Walker [(hereinafter “Walker”)] when he was outside of his
residence located on the 1500 block of Grange Street.
[Appellant] and Jackson wore dark hoodies and were seated in a
green Crown Victoria sedan. Jackson got out of the car and said
to [Appellant], “There he go.” [Appellant] then fired several
shots at Walker, who was struck in the chest and in the left arm.
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Walker’s mother[, Bernadette Walker (hereinafter “Ms.
Walker”),] was inside the residence when she heard the
gunshots and a male voice state, “I told you I would get you.”
She and Walker’s brother[, David Murray (hereinafter
“Murray”),] hurried outside to help Walker who was lying on the
street. As they helped him, Walker told [Ms. Walker] and
[Murray] that he was shot by [Appellant] and Jackson.
[Appellant] and Jackson targeted Walker because they believed
that he was cooperating in a robbery case against a mutual
friend.
Walker provided a written statement to police on the night
of the shooting wherein he identified [Appellant] and Jackson as
the individuals who shot him.[1] At trial, Walker was given the
opportunity to deny or admit making the prior statements. After
denying making the statement, the Commonwealth called
Detective Knoll to testify regarding the content and
circumstances of the statement including that it was signed and
adopted by Walker and that he told police that [Appellant] was
the person who shot him.[2]
[Ms. Walker] provided a signed and written statement to
police in which she stated that Walker told her that he was shot
by [Appellant] and Jackson.[3] At trial, [Ms. Walker] testified
that she did not remember anything that occurred on the day of
the shooting. She also testified that she did not remember what
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1
Specifically, when asked, “who shot you tonight?” Walker replied, “Ramieq
[Jackson] was there, but [Appellant] shot me.” N.T. Trial, 12/3/10, at 171.
2
Additionally, the Commonwealth confronted Walker with his prior testimony
at the preliminary hearing. See N.T. Trial at 184-196. There, Walker was
asked what happened on the day of the shooting, and he replied, “I was
coming from the store and I got involved in a fight with Ramieq [Jackson]
but as I was going into the house I was shot by [Appellant].” N.T.
Preliminary Hearing, 5/9/09, at 5. Walker also identified Appellant in court
as the person who shot him. Id. at 8.
3
Specifically, Ms. Walker told police that she “asked [Walker] who shot him,
and he said Ramieq [Jackson]. He also said something about [Appellant].”
N.T. Trial at 63.
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she said to police or even signing her statement. The
Commonwealth introduced her statement into the record
wherein she indicated that Walker told her that [Appellant] shot
him.
[Murray] also provided a signed and written statement to
police in which he stated that Walker told him that he was shot
by [Appellant] and Jackson.[4] When called as a witness for the
Commonwealth, [Murray] also failed to recall the details of his
statement to police. … The Commonwealth, as with [Ms.
Walker], introduced [Murray’s] statement … that identified
[Appellant] as the shooter into the record.
PCRA Court Opinion (PCO), 5/17/17, at 1-3 (citations to the record and
footnote omitted).
Following Appellant’s non-jury trial on December 3, 2010, the court
convicted him of attempted murder, 18 Pa.C.S. § 901(a); aggravated
assault, 18 Pa.C.S. § 2702(a); criminal conspiracy, 18 Pa.C.S. § 903(a)(1);
carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1); carrying a
firearm in public in Philadelphia, 18 Pa.C.S. § 6108; and possessing an
instrument of crime, 18 Pa.C.S. § 907(a). On April 7, 2011, he was
sentenced to an aggregate term of 14 to 30 years’ imprisonment. He filed a
timely direct appeal to this Court, and after we affirmed, our Supreme Court
denied his subsequent petition for allowance of appeal. Commonwealth v.
Ellis, 46 A.3d 829 (Pa. Super. 2012) (unpublished memorandum), appeal
denied, 53 A.3d 49 (2012).
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4
Specifically, Murray told police that he “asked [Walker] who shot him, and
he told me Ramieq [Jackson] and [Appellant].” N.T. Trial at 123.
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Appellant filed a timely PCRA petition on August 26, 2013. He
thereafter retained private counsel, who filed an amended petition on
October 27, 2014. On January 19, 2016, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition and, after
receiving no response from Appellant, the court did so by order entered
March 4, 2016. Appellant filed a timely notice of appeal, and also timely
complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Herein, he presents the
following six issues for our review:
I. Was trial counsel ineffective for failing to object to [the]
admission of the co-defendant’s statement in violation of the
Confrontation Clause?
II. Was trial counsel ineffective for failing to object to the
admission of the victim’s [statement to] police … where the
victim was incoherent while giving and signing it and the
preliminary hearing court excluded it on those grounds?
III. Was trial counsel ineffective for failing to object to hearsay
testimony about unspecified witnesses identifying Appellant as a
suspect?
IV. Did trial court bias and prosecutorial misconduct violate
Appellant’s right to a fair trial and was appellate counsel
ineffective for failing to raise this issue?
V. Were trial and appellate counsel ineffective for failing to
challenge the sufficiency of the evidence for all convictions where
the sole evidence was recanted out-of-court statements which
were inconsistent with each other and given under circumstances
diminishing their reliability?
VI. Was trial counsel ineffective for failing to counsel Appellant
about his jury-trial right and pressuring him into waiving it?
Appellant’s Brief at 1-2 (unnecessary capitalization omitted).
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First, “[t]his Court’s standard of review from the grant or denial of
post-conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free
of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S. Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of
strategy and tactics are concerned, “[a] finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can
be concluded that an alternative not chosen offered a potential
for success substantially greater than the course actually
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pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation
and quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Issue I
Appellant first argues that his trial counsel acted ineffectively by not
challenging the admission of a written statement made by his non-testifying
co-defendant, Jackson, which “was insufficiently redacted, replacing
Appellant’s name with ‘blank.’” Appellant’s Brief at 13. Appellant contends
that the admission of this confession violated the United States Supreme
Court’s holdings in Bruton v. U.S., 391 U.S. 123 (1968) (declaring that a
defendant “is deprived of his rights under the Confrontation Clause when his
non[-]testifying co[-]defendant’s confession naming him as a participant in
the crime is introduced at their joint trial, even if the jury is instructed to
consider that confession only against the co[-]defendant”), and Gray v.
Maryland, 523 U.S. 185, 197 (1998) (holding that a confession by a non[-]
testifying co[-]defendant that was redacted using blanks, the word ‘delete,’
or an obvious symbol violates the Confrontation Clause).
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After careful review, we disagree with Appellant that he was prejudiced
by counsel’s failure to object to the admission of Jackson’s confession, as
Appellant has not demonstrated that it impacted the trial court’s verdict in
this case. Initially, as the PCRA court stresses, Appellant was not tried by a
jury and, thus, the concerns underlying the Bruton decision are not present
in this case. See PCO at 6 (concluding that “Bruton only applies to the
introduction of redacted confessions during jury trials, not bench trials”)
(citing Commonwealth v. Brooks, 660 A.2d 609, 614 n.3 (Pa. Super.
1995) (noting that, because the appellant “was tried by a judge, not a jury,
… the problems associated with the jury’s improper use of a redacted
confession which were addressed in Bruton, supra, … are not present in
this case”); see also Commonwealth v. Managan, 281 A.2d 666, 668
(Pa. Super. 1971) (noting “that the fundamental reason on which the
decision in Bruton was predicated was a balancing of risks, i.e., the risk that
a jury could or would not disregard prejudicial out-of-court inculpatory
statements of a co[-]defendant, who did not testify, although instructed by
the court to do so, against the risk of the jury system not accomplishing the
justice it is established to render. Such a risk is not present in this case
where the fact[-]finder i[s] the judge who, in a jury trial, would be the one
to give the instruction to the jury to disregard such prejudicial evidence.
Certainly it is not too unreasonable to presume that he would himself obey
the mandate he would have given to a jury.”).
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Moreover, the PCRA court points out that “[t]he trial judge, as the
factfinder, is presumed to be perfectly instructed as to how to consider
evidence introduced at trial[,] including improperly Brutonized statements.”
PCO at 6 (citing Commonwealth v. Harvey, 526 A.2d 330, 333 (Pa. 1987)
(stating that “where a criminal case is tried before a judge sitting without a
jury, there is a presumption that his knowledge, experience and training will
enable him to disregard inadmissible evidence”). Contrary to Appellant’s
argument on appeal, nothing in the PCRA court’s decision suggests that it
considered the language of Harvey as a “rule absolute[,]” meaning that the
presumption discussed in Harvey could not be overcome. Appellant’s Brief
at 15. In any event, the record does not support Appellant’s assertion that
the ‘Harvey presumption’ was overcome in this case. According to
Appellant,
[t]here is at least one concrete indication that the [trial] court
did use Jackson’s statement as evidence against Appellant.
Absent Jackson’s statement, there was no evidence to convict
Appellant of conspiracy with Jackson to commit first-degree
murder.
Id. at 18 (emphasis in original).
Appellant’s argument is unconvincing, as there was ample evidence -
aside from Jackson’s confession - to support the trial court’s conclusion that
Appellant and Jackson conspired to murder Walker. Namely, in his
statement just after the shooting, Walker told police that just before he was
shot, Jackson and Appellant arrived together in a car, Jackson said, “there
he go,” and Appellant then shot him. See N.T. Trial at 239-240. Walker
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also told police that he had “been having a beef” with Appellant and Jackson
“[s]ince the summer.” Id. at 240. At the preliminary hearing, Walker again
said that he had a fight with Jackson, and then later was shot by Appellant.
Id. at 186. Walker also testified at the preliminary hearing that Appellant
was “close up to [him]” when Appellant shot him three times, once in his
chest and twice in his arm. Id. at 189, 190, 191. Additionally, on the night
of the shooting, Appellant’s brother, Murray, told police that he asked
Walker who shot him, and Walker “said Ramieq [Jackson] and [Appellant].”
Id. at 224. Murray also said that “[t]here was a lady in the car stopped
right next to [the victim] who told [Murray] that there were two guys
running up on [the victim] and shooting at him.”5 Id.
This evidence was sufficient to prove that Appellant intended to kill
Walker, that he and Jackson agreed to commit that crime together, and that
Appellant took an overt act in furtherance of that agreement by shooting
Walker three times at close range, striking Walker in his chest and arm.
See Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)
(stating the elements of criminal conspiracy) (citation omitted); see also
Commonwealth v. Smith, 985 A.2d 886, 895 (Pa. 2009) (stating that an
intent to kill may be established by evidence that the defendant “use[d] … a
deadly weapon on a vital part of the victim’s body”). Accordingly, as there
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5
Appellant did not object to the admission of this testimony at trial. Id. at
224.
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was sufficient evidence, aside from Jackson’s confession, to convict
Appellant of conspiracy to commit murder, and nothing else in the record
demonstrates that the trial court considered Jackson’s confession as
evidence of Appellant’s guilt, Appellant has not demonstrated that he was
prejudiced by trial counsel’s failure to raise a Bruton/Gray objection to the
admission of Jackson’s confession.
Issue II
Next, Appellant avers that trial counsel was ineffective for “failing to
move to preclude the use of the statement Walker gave to police on the
night of the shooting naming Appellant as the shooter.” Appellant’s Brief at
21. Appellant maintains that Walker’s statement was not admissible as
substantive evidence under Pa.R.E. 803.1, or merely for impeachment
purposes under Pa.R.E. 613. Because we conclude that the statement was
admissible under Rule 803.1, we only address that aspect of Appellant’s
argument. In this regard, Appellant claims that Walker’s statement was not
sufficiently reliable, and it was not properly adopted by Walker, as he did not
sign his statement until two days after providing it.6 Appellant’s Brief at 24-
25.
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6
Appellant also repeatedly stresses that the preliminary hearing judge
precluded testimony regarding Walker’s out-of-court statement, after
Jackson’s counsel objected to it on the grounds that Walker did not verify
that “he gave that statement[,]” and because Walker claimed he “didn’t read
it and … he was under the influence of drugs at the time because he was in
the hospital.” N.T. Preliminary Hearing at 14. The preliminary hearing
(Footnote Continued Next Page)
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Pennsylvania Rule of Evidence 803.1 directs that “[t]he following
statements are not excluded by the rule against hearsay if the declarant
testifies and is subject to cross-examination about the prior statement:”
(1) Prior Inconsistent Statement of Declarant-Witness. A
prior statement by a declarant-witness that is inconsistent with
the declarant-witness's testimony and:
(A) was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic recording of
an oral statement.
Pa.R.E. 803.1. The comment to this rule states that it is “consistent with
prior Pennsylvania case law[,]” specifically Commonwealth v. Brady, 507
A.2d 66 (Pa. 1986) (holding that a prior inconsistent statement of a non-
party witness may be used as substantive evidence where the declarant is a
witness at trial and available for cross-examination, the jury had the
opportunity to observe the demeanor of the witness and to assess his
credibility, and the statement was rendered under highly reliable
circumstances assuring that it was voluntarily given), and Commonwealth
v. Lively, 610 A.2d 7 (Pa. 1992) (holding that a prior inconsistent statement
_______________________
(Footnote Continued)
judge ruled that “any testimony concerning the statement shouldn’t be
admissible[,]” without giving a specific reason for that ruling. Id. at 14-15.
On appeal, Appellant cites no legal authority suggesting that the trial court
was bound by the preliminary hearing judge’s determination. Moreover,
based on our discussion, infra, we conclude that Walker’s statement was
admissible under Rule 803.1 and, therefore, the magisterial court erred by
not admitting it.
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by a non-party witness shall be used as substantive evidence only when it
was given under oath at a formal legal proceeding, or the statement was
reduced to writing signed and adopted by the declarant, or the statement
was recorded verbatim contemporaneously with the making of the
statement).
Here, Detective Joseph Knoll testified that he went to the hospital to
speak to Walker at approximately 9:30 p.m. on the night of the shooting,
December 16, 2008. N.T. Trial at 237. The detective testified that when he
arrived, Walker was “alert” and “aware of what[ was] going on.” Id. at 238.
Detective Knoll stated that Walker “was talking to family members” and to
the officers. Id. Walker did not “seem like he was in pain.” Id. Initially,
Walker “seemed like he didn’t want to talk to [the detective]. But after a
few minutes, [the detective was] able to talk to him and he was able to give
[the detective] some answers to a couple questions.” Id. After the
detective wrote down Walker’s answers to the questions asked of him,
Walker “read it over[.]” Id. Detective Knoll testified that he did not have
Walker sign the statement that day because Walker had “IVs connected into
him,” the detective “wasn’t sure which IV was going to what arm[,]” and he
“was just afraid to have [Walker] sign anything at that time.” Id. at 239.
Consequently, Detective Knoll returned to the hospital two days later - on
December 18, 2008 - to have Walker sign his statement. Id. at 241. On
that day, Walker read his statement again, determined that he had no
changes to make, and then he signed the statement. Id. at 241.
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Based on this testimony, we conclude that Appellant was not
prejudiced by trial counsel’s failure to object to the admission of Walker’s
out-of-court statement. Walker took the stand at trial and was subject to
cross-examination. There is no dispute that his testimony was inconsistent
with his statement to police. That statement was taken just hours after the
shooting, when the events were fresh in Walker’s mind and he had no
apparent motive for fabrication. Detective Knoll testified that Walker was
alert and coherent when he spoke to police. Two days after answering
Detective Knoll’s questions, Walker adopted that statement by reading it
over, deciding not to make any changes to it, and then signing it. 7 Thus,
Walker’s statement was admissible as substantive evidence under Rule
803.1(1)(B), and Appellant was not prejudiced by his counsel’s failure to
object to the admission of that statement.
Issue III
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7
We reject Appellant’s argument that Commonwealth v. Presbury, 665
A.2d 825 (Pa. Super. 1995), holds that “a statement must have been
adopted when it was made, not at a later date.” Appellant’s Brief at 25. The
only reference to this issue in Presbury is the following sentence:
“Instantly, the prior statement was signed and adopted by Jones at the time
the statement was made.” Id. at 832. We disagree with Appellant that this
sentence in Presbury must be read as holding that a statement can never
be adopted “at a later date.” Appellant’s Brief at 25. Certainly, it is more
common, and preferable, that a statement be signed and adopted at the
time it is made. However, here, Walker was presented with his statement
only two days after making it, and he clearly adopted it by reading it over,
deciding not to make any changes to it, and then signing it.
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In Appellant’s third issue, he avers that his trial counsel was ineffective
for not objecting “to police witnesses’ hearsay testimony that other
witnesses, who were not called or even named at trial, identified Appellant
as being involved in the shooting.” Appellant’s Brief at 28. Briefly, during
the testimony of Detective William Knecht, he was asked questions
pertaining to how police had assembled a photographic array that included
pictures of Jackson and Appellant. See N.T. Trial, 12/3/10, at 92-95. In his
answers, the detective explained that, while he was conducting an interview
of Bernadette Walker at the hospital, other “detectives [were] conducting
interviews with witnesses who were on the scene[,]” from which “[t]hey
were able to generate photos….” Id. at 94-95. Those photographs were
then given to Detective Knecht at the hospital and shown to Ms. Walker. Id.
at 92, 95.
In concluding that Detective Knecht’s testimony was admissible (and,
thus, Appellant’s counsel was not ineffective for failing to object to it), the
PCRA court reasoned that “certain out-of-court statements - offered to
explain the course of police conduct - are admissible because they are
offered, not for the truth of the matters asserted, but rather to show why
the police took certain actions.” PCO at 8 (citing Commonwealth v.
Chmiel, 889 A.2d 501, 532 (Pa. 2005)). The court concluded that, here,
“the testimony of the detective[] was not offered for the truth of the matter
asserted, but rather merely to show how the police put together the photo
array….” Id. at 9.
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The record supports the PCRA court’s determination. Detective
Knecht’s testimony that detectives compiled a photographic array, which
included Appellant’s and Jackson’s pictures, based on information provided
by witnesses at the scene, was not offered to prove the truth of what was
asserted by those witnesses, i.e., that Appellant and Jackson were involved
in the shooting. Instead, the detective’s testimony was offered merely to
explain how the police developed the photographic array that was shown to
Ms. Walker during her interview at the hospital. Therefore, Detective
Knecht’s testimony was not inadmissible hearsay, and Appellant was not
prejudiced by his counsel’s failure to object to that evidence.8
Issue IV
Next, Appellant avers that his appellate counsel was ineffective for
failing to argue on appeal that the trial court and the prosecutor exhibited
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8
We also note that we are unconvinced by Appellant’s argument that the at-
issue testimony by Detective Knecht should have been objected to, and
precluded, due to the risk that the trial court would consider it as
substantive evidence of Appellant’s guilt. Appellant stresses that courts
“must exercise caution in permitting” such ‘course of police conduct’
testimony, relying on cases that discuss the risks of admitting such evidence
at jury trials, because “the statements might be taken by the jury as
substantive evidence of guilt without there having been an opportunity to
cross-examine the declarant.” Appellant’s Brief at 30 (quoting
Commonwealth v. Jones, 658 A.2d 746, 751 (Pa. 1995)) (emphasis
added). Again, Appellant was not tried by a jury, and his bald assertion that
“there is evidence that the trial judge [in this case] did use improper
evidence against Appellant” is insufficient to convince this Court that such
was the case. Id.
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bias and committed misconduct, respectively. Initially, the Commonwealth
argues, and we agree, that Appellant has waived his appellate counsel
ineffectiveness claims for our review. While Appellant devotes twelve pages
of argument to his trial court bias and prosecutorial misconduct claims, his
entire discussion of how appellate counsel acted ineffectively by not raising
these issues on direct appeal amounts to the following paragraph:
Instances of trial[]court bias and prosecutorial misconduct
abounded in Appellant’s trial. Co-defendant Jackson’s counsel
repeatedly objected and moved for a mistrial.26 On appeal,
Appellant’s counsel failed to litigate these objections. Instead,
appellate counsel raised only one frivolous claim of error,
insufficient evidence of specific intent to kill. The PCRA court’s
finding that appellate counsel was not ineffective is not
supported by the record.
26
As noted previously, Appellant’s counsel relied heavily
on Jackson’s counsel to litigate his own case. He asked for
a running incorporation of all of Jackson’s counsel’s
objections which the trial court granted. Hence, all of the
claims of error were preserved for appellate review.
Appellant’s Brief at 43 (citations to the record omitted).
Notably, Appellant provides no discussion of this Court’s standard of
reviewing trial court bias and/or prosecutorial misconduct claims, or why we
would have granted relief on direct appeal had appellate counsel raised
these issues. Instead, Appellant argues these issues as if he is currently on
direct appeal, which does not meet his burden of pleading and proving
appellate counsel’s ineffectiveness. See Commonwealth v. Bond, 819
A.2d 33, 40 (Pa. 2002) (finding that a “bald[] assert[ion] that all prior
counsel were ineffective for failing to litigate the issue[,]” which was “tacked
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on to waived claims of trial court error[,] do not discharge [the] appellant’s
burden of proving ineffectiveness”) (citing, inter alia, Commonwealth v.
Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001) (concluding that “an
undeveloped argument, which fails to meaningfully discuss and apply the
standard governing the review of ineffectiveness claims, simply does not
satisfy [an a]ppellant’s burden of establishing that he is entitled to any
relief”)).
In any event, we would conclude that Appellant’s claims of trial court
bias and prosecutorial misconduct lack arguable merit and, therefore,
appellate counsel was not ineffective for failing to raise them on direct
appeal. First, in regard to the trial court, Appellant contends that the court
exhibited bias “in two ways … : (1) direct statements giving the appearance
of bias or improper influence, and (2) conduct giving the appearance that
the court pre-judged significant aspects of the evidence, including
questioning which bordered on badgering of the witnesses.” Appellant’s
Brief at 33. To summarize, Appellant takes issue with comments the court
made during the examinations of Walker, Ms. Walker, and Murray, which
indicated that the court did not believe their testimony that they could not
recall the events of the shooting or anything they told police. See, e.g.,
N.T. Trial, 12/03/10, at 61 (the court’s stating that it did not believe Ms.
Walker’s claim that she could not recall anything she told police about the
shooting); id. at 124-134 (the court’s questioning Murray about whether he
remembered the statement he made to police); id. at 133-34 (the court’s
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stating to Murray that he was “not being badgered[,]” but was instead
“being questioned”); id. at 196 (the court’s asking Walker if he was saying
“the stenographer did not record his answers correctly” at the preliminary
hearing when he identified Appellant); id. at 213 (the court’s asking Walker
if he “wanted [the court] to believe] that he “uttered these words [at the
preliminary hearing] but didn’t know what [he was] saying”). According to
Appellant, these statements indicated the court was biased against him, as it
pre-judged the credibility of these witnesses’ claims that they did not
remember the events of the shooting.
In rejecting this argument, the PCRA court reasoned as follows:
Here, the trial court heard evidence as factfinder and was
required to make credibility determinations of each witness.
During the testimony of Walker’s mother, the trial court
expressed its skepticism of her truthfulness after she stated that
she could not remember anything about the day that her son
was shot despite being presented with her signed statement.
The trial court cautioned her - by delineating the possibility of
being taken into custody - that she risked criminal charges if she
was not truthful. Similarly, despite his statement…, Walker’s
brother implied during his trial testimony that police compelled
him to say [Appellant] was the shooter. While being questioned
by the Commonwealth about these inconsistencies, the trial
court stated, “You’re not being badgered. You’re being
questioned…[.] You are not being forthright.[”] [N.T. Trial,]
12/03/10[,] at 134. When Walker provided testimony [that was]
inconsistent with his prior statements and testimony, the trial
court, in disbelief of Walker’s testimony, said, “So the
stenographer did not record your answers correctly; is that what
you are saying?” Id. at 196.
When viewed in the context of the entire trial, the trial
court’s statements and questions to the witnesses were nothing
more than candid assessments of the credibility of each witness.
Indeed, there was nothing improper [in] the trial court[’s] …
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mak[ing] such assessments given its fact-finding role in a bench
trial. Further, [Appellant] presents no evidence to overcome the
presumption that a trial court acts without bias or prejudice.
See Commonwealth v. Tainan, 734 A.2d 886, 889[] (Pa.
Super. [] 1999) ([stating] a trial judge is presumed to act
“properly, bound by the oaths of his office and faithful to the
requirements of an unprejudiced, unbiased judiciary”). As such,
there is no basis to find that any of the trial court’s statements
were prejudicial or deprived [Appellant] of a fair and impartial
trial.
PCO at 14-15.
Having reviewed the at-issue comments and questions by the trial
court, we would conclude that the record supports the PCRA court’s
rationale. At worst, the trial court’s comments and questions of Walker, Ms.
Walker, and Murray revealed that the court was frustrated with these
witnesses’ “collective amnesia,” as the Commonwealth aptly puts it. See
Commonwealth’s Brief at 43. However, we see nothing in the record from
which we could conclude that the court harbored a bias against these
witnesses or Appellant, or that the court could not conduct an impartial
assessment of the evidence. Moreover, we agree with the Commonwealth
that,
especially when there is no jury to be influenced, a trial judge
need not limit his reaction to a raised eyebrow when witnesses
give combative and facially implausible testimony. Rather, the
judge has the right and, at times, the duty to “ask questions
when absurd, ambiguous, or frivolous testimony is given or
testimony is in need of further elucidation.” Commonwealth v.
Carson, 913 A.2d 220, 249 (Pa. 2006).
Commonwealth’s Brief at 41-42.
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Additionally, Appellant’s claim that the court’s conduct exhibited a
‘pre-judgment’ of the witnesses’ credibility is belied by the record, as the
court’s statements occurred after these witnesses testified that they could
not recall the shooting or their statements to police. Appellant also takes
issue with the judge’s comment that he has “to use [his] own good common
sense and [his] experience for many, many years as to what happened” in
assessing the credibility of the witnesses and rendering his verdict. N.T.
Trial at 279-80. Appellant argues that the court’s comment reveals that the
court was improperly “us[ing its] experience from other cases to draw
inferences of guilt against Appellant.” Appellant’s Brief at 34 (emphasis
added). Appellant is simply misstating the court’s remark, as the court did
not refer to other cases when mentioning its ‘experience.’ We see nothing
improper in the trial court’s comment. See Commonwealth v. Brown, 52
A.3d 1139, 1169 (Pa. 2012) (“The trier of fact may bring to bear his or her
sensory observations, experience, common sense and logic upon the witness
to assess credibility and to determine the truth and accuracy of both the out-
of-court declarations and in-court testimony.”).
In sum, Appellant’s claim that the trial court exhibited bias and ‘pre-
judged’ the evidence is not supported by the record, and therefore, we
would conclude that his appellate counsel was not ineffective for failing to
raise this claim on direct appeal.
We would reach the same conclusion regarding Appellant’s
ineffectiveness claim pertaining to alleged prosecutorial misconduct.
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Appellant specifically points to (1) remarks the prosecutor made to Walker,
Ms. Walker, and Murray at the start of their testimony, which informed them
that there would be consequences if they lied on the stand; (2) questions
posed by the prosecutor to each of these witnesses that, according to
Appellant, suggested that they were being dishonest; and (3) the following
remark by the prosecutor during closing arguments:
[The Prosecutor]: … [Walker, Ms. Walker, and Murray] told a
different story in court today two years later -- and I’m not going
to … ask the [c]ourt to consider why that is because I know the
[c]ourt is more than aware of what happens when someone two
years later gets -- has to face their accusers in court in an open
courtroom in a city where we know what happens.
N.T. Trial at 283-84. Essentially, Appellant complains that the prosecutor’s
remarks to, and about, these witnesses implied to the court that the
prosecutor “knew the witnesses’ in-court testimony was false and that they
had been intimidated.” Appellant’s Brief at 41.
In rejecting Appellant’s arguments, the PCRA court concluded that
“[e]ven if these comments were improper, they were not made to a jury[,]”
and “[t]he trial court, through its experience and training, was able to
disregard any inadmissible evidence and provide [Appellant] with a fair
trial.” PCO at 16. Appellant challenges the PCRA court’s reasoning by baldly
claiming that there was “one concrete example of the [trial] court’s inability
to disregard inadmissible evidence.” Appellant’s Brief at 43. Presumably,
Appellant is referring to his belief that the court improperly considered
Jackson’s confession as evidence of Appellant’s guilt. Appellant also stresses
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that “the court’s behavior,” discussed supra, demonstrates that the court
was prejudiced against him and these witnesses because of the prosecutor’s
remarks. Because we have considered both of these arguments, and
determined that neither is supported by the record, we would ascertain no
error in the PCRA court’s determination that the prosecutor’s comments,
even if improper, did not unavoidably prejudice the factfinder, i.e., the trial
court. See Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super.
2008) (“Generally, a prosecutor’s arguments to the jury are not a basis for
granting a new trial unless the unavoidable effect of such comments would
be to prejudice the jury, forming in their minds fixed bias and hostility
towards the accused which would prevent them from properly weighting the
evidence and rendering a true verdict.”).
Issue V
In Appellant’s fifth issue, he argues that appellate counsel was
ineffective for failing to challenge the sufficiency of the evidence to sustain
all of Appellant’s convictions, rather than only challenging his attempted
murder conviction. Appellant does not specifically discuss what element(s)
of aggravated assault, conspiracy, possessing an instrument of crime, or his
firearm offenses that the Commonwealth failed to prove. Rather, he argues
that his appellate counsel should have asserted that his convictions must all
be overturned because they were premised only on out-of-court statements,
which were all recanted at trial.
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In rejecting this claim, the PCRA court relied on Commonwealth v.
Brown, 52 A.3d 1139 (Pa. 2012), where our Supreme Court held,
that criminal convictions which rest only on prior inconsistent
statements of witnesses who testify at trial do not constitute a
deprivation of a defendant’s right to due process of law, as long
as the prior inconsistent statements, taken as a whole, establish
every element of the offense charged beyond a reasonable
doubt, and the finder-of-fact could reasonably have relied upon
them in arriving at its decision.
Id. at 1171. The PCRA court also stressed that here,
[o]n direct appeal, [Appellant’s] appellate counsel challenged the
sufficiency of the evidence of only the most serious charge of
attempted murder. The Superior Court affirmed [Appellant’s]
attempted murder conviction on direct appeal. The other, less
serious charges stem from the same facts and evidence that
support the attempted murder conviction. As such, [Appellant’s]
claim of error is meritless, i.e., an appeal challenging the
sufficiency of the evidence for the lesser convictions would have
failed because the same evidence that supported the attempted
murder conviction also supports the convictions on the lesser
[crimes].
PCO at 13.
We see no error in the PCRA court’s decision. Our Court previously
ruled that the out-of-court statements in this case were sufficient evidence
that Appellant committed attempted murder. Even had appellate counsel
challenged the sufficiency of the evidence to support Appellant’s other
convictions on the basis that they rested only on out-of-court statements,
Brown clarifies that such statements can be enough to sustain a criminal
conviction. Moreover, Appellant’s attempt to distinguish the statements
admitted in this case from those found admissible in Brown is unconvincing.
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As in Brown, the statements were reduced to writing and signed by the
witnesses, and each statement was admitted into evidence at trial under
Pa.R.E. 803.1(1). Additionally, the statements were fundamentally
consistent in naming Jackson and Appellant as Walker’s shooters, and
Walker, Ms. Walker, and Murray each testified at Appellant’s trial, thus
providing the trial court with the opportunity to assess the credibility of their
claimed memory loss, and their suggestions of undue police influence in
making their out-of-court statements. Again, Appellant does not make any
argument that the element(s) of his crimes were not proven by the out-of-
court statements. Thus, as in Brown, the out-of-court statements admitted
in this case were sufficient evidence to sustain Appellant’s convictions.
Consequently, he was not prejudiced by appellate counsel’s failure to raise a
sufficiency challenge to each of his convictions on direct appeal.
Issue VI
In Appellant’s sixth and final issue, he argues that his “[t]rial counsel
provided ineffective assistance in failing to ensure that Appellant’s jury [trial]
waiver was knowing and intelligent - indeed, he coerced it.” Appellant’s
Brief at 49. Appellant specifically contends that the “in-court, oral waiver
colloquy was deficient, as it listed none of the essential ingredients[,]” such
as “informing Appellant that jurors would be his peers, that the jury verdict
must be unanimous, and that Appellant would be allowed to participate in
jury selection….” Id. at 52.
In rejecting this claim, the PCRA court noted that Appellant
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signed a written waiver of a jury trial form. In addition to the
signed waiver of jury trial form, [the trial court] conducted an
oral colloquy where [Appellant] testified under oath that: (1) he
understood he had an absolute right to a jury trial, (2) no
promises were made to him to waive his right to a jury, (3) he
understood that the judge is the factfinder and makes credibility
determinations, (4) he was not forced or threatened to relinquish
his right to a jury, and (5) his ability to understand the
proceedings was not impaired. Following the colloquy,
[Appellant] stated that he was satisfied with the representation
of his attorney.
Based upon this record, [Appellant’s] waiver of his right to
a jury trial was knowing, intelligent, and voluntary. His claim
that he was improperly advised and coerced to waive his right to
a jury trial is contradicted by the record and thus patently
frivolous. See [Commonwealth v.] Mallory, 941 A.2d [686],
696 [(Pa. 2008)] (the use of a written jury trial waiver form
combined with an oral colloquy demonstrates a valid waiver of
defendant’s right to a jury trial).
PCO at 10.
On appeal, Appellant challenges the PCRA court’s reliance on his
written waiver colloquy. Appellant does not dispute that the written colloquy
informed him of all the ‘essential ingredients’ of a valid jury waiver. Rather,
he complains that the “circumstances show its signing was not knowing or
intelligent.” Appellant’s Brief at 52. Appellant elaborates:
Appellant signed the form on the day of trial, December 3, 2010,
even though the trial was converted from a three-day jury trial
to a waiver trial eight months earlier. The eight-month gap
between waiving the jury trial and signing the waiver form
supports Appellant’s contention that trial counsel agreed to
waive a jury without Appellant’s consent and [that counsel]
foisted the idea upon him on the day of trial. According to
Appellant, he signed the form without reviewing it or [having]
trial counsel explain[] it to him because trial counsel appeared
angry - over a separate matter - and impatient.
Id. at 52-53.
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Appellant mischaracterizes the record. First, he incorrectly implies
that he completed the oral and written waiver colloquies eight months before
he signed the written waiver form. See id.; see also id. at 53 (“[T]he
written form’s validity is rebutted by its being signed months after the actual
waiver….”). The record confirms that Appellant completed both the oral and
written waiver colloquies on the same day, i.e., December 3, 2010, and he
signed the waiver document on that day as well. Moreover, the fact that a
June 8, 2010 notation on the trial court’s docket stated that this case would
be a ‘waiver trial’ does not demonstrate that counsel decided on a non-jury
trial without Appellant’s consent. Indeed, that notation could just as easily
support a conclusion that Appellant and his counsel discussed proceeding
with a non-jury trial for months before Appellant actually waived his right
to a jury in December of 2010. Notably, Appellant made no claim in his
“Declaration,” attached to his amended PCRA petition, that counsel “foisted
the idea” of a non-jury trial on him on the day trial commenced.
Second, while Appellant now avers that he signed the written waiver
colloquy form without reviewing it or discussing it with counsel, this
assertion is also belied by the record. The waiver form explicitly directed
that Appellant should “initial each page at the bottom, but only if you have
read and understood that page.” Written Jury Trial Waiver Colloquy,
12/3/11, at 1 (unnumbered; emphasis added). Appellant’s initials appear at
the bottom of each page of the colloquy. Additionally, at the end of the
waiver form, Appellant signed his name directly under the following
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statement: “I have answered the questions on the above Defendant
Information Sheet and I have reviewed the entire matter with my
attorney and I understand all of the information given above.” Id. at
4 (unnumbered; emphasis added). Appellant’s own attestations on the
waiver colloquy form contradict his assertions on appeal. Moreover, as the
Commonwealth points out, Appellant “admitted to the PCRA court that he
had waived his right to a jury in prior cases - an admission that necessarily
implied that the colloquies in this case were not the first time he was
formally advised of the essential elements of a jury trial.” Commonwealth’s
Brief at 55.
Given the totality of these circumstances - namely, the oral colloquy,
the written waiver form completed by Appellant, and his admissions that he
has previously waived his right to a jury trial - we see no error in the PCRA
court’s conclusion that Appellant’s waiver of his right to a jury trial was
knowing, intelligent, and voluntary. See Mallory, 941 A.2d at 698 (“[T]he
mere absence of a record oral waiver colloquy does not automatically prove
that a right was relinquished unknowingly or involuntarily and that the trial
lawyer was ineffective for causing waiver. … When a presumptively-valid
waiver is collaterally attacked under the guise of ineffectiveness of counsel,
… the analysis must focus on the totality of relevant circumstances. Those
circumstances include the defendant’s knowledge of and experience with
jury trials, his explicit written waiver (if any), and the content of the off-the-
record discussions counsel had with his client.”) (citations omitted).
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Therefore, Appellant’s trial counsel was not ineffective in advising or allowing
him to waive his right to a jury trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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